2010: Legal capacity and proxy decision making
Proxy decision making
Guardianship is covered by the Law of 11th August 1982 concerning Reform of the Law on Incapable Adults and also the Grand-ducal Decree of 27th October 1982 concerning Procedures relating to the Protection of Incapable Adults. The above provide protection for adults whose personal faculties are impaired in such a manner as to render them unable to look after their own interests without assistance, either for the purpose of a particular act or in a continuous manner (article 488).
Conditions for the appointment of a guardian
According to article 490:
"Where an individual's mental faculties are impaired by illness, infirmity or enfeeblement due to old age, that person's interests shall be provided for by means of one of the protective regimes stipulated in the succeeding chapters.
The same protective regimes shall apply to impairments of bodily faculties, where these preclude any expression of intention.
Impairment of mental or bodily faculties shall be medically established."
The different kinds of protective regime (i.e. guardianship) referred to in the above article are:
- sauvegarde de justice (legal protection)
- curatelle (curatorship)
- tutelle (tutorship)
The system of guardianship adopted depends on the severity of the mental incapacity of the person for whom the measure is intended.
How guardianship is arranged
There are a few general provisions which apply to all three forms of protection.
First, the choice of medical treatment, in particular the choice between hospitalisation and home care, is not influenced by the kind of guardianship measure adopted. For example, the fact that a person has had a tutor appointed will not affect any decision concerning where s/he should be cared for.
Second, with regard to the protection of civil interests, the system applied is independent of any medical treatment administered. This means that the fact that a person is receiving a particular form of medical treatment has no relevance when it comes to deciding on the kind of measure necessary to protect his/her civil interests.
Third, in all cases, the person's home and furniture are kept as long as possible. Should it become necessary to dispose of the dwelling or sell the furnishings, authorisation must be obtained from the tutelary judge who decides after hearing the opinion of the person’s usual doctor . Keepsakes and other objects of a personal nature must not be sold and should be kept at the disposal of the protected person, if necessary at an institution.
Finally, the State Prosecutor of the place of treatment and the tutelary judge may visit or arrange for any adult protected by law to be visited, irrespective of the protective regime applicable.
Legal protection (sauvegarde de justice)
Conditions for setting up legal protection
Legal protection may be imposed on any adult who due to one of the causes cited in article 490 is in need of protection in the acts of civil life. It constitutes a minimum means of protection and can also be used as a temporary protective measure whilst a request for a tutor or curator is being processed. The person subject to legal protection continues to exercise his/her rights.
How legal protection is arranged
In order to arrange legal protection, a declaration must be made to the tutelary judge. A doctor can make this declaration if s/he notices that the person under care is in need of protection in line with the provisions of article 490. If the declaration is accompanied by the second opinion of a doctor specialised in neurology, neuro-psychiatry or psychiatry, the judge can decide to place the person under legal protection. The opinion of a specialist is not necessary if the doctor making the declaration is a specialist him/herself.
How the affairs of the person under legal protection are handled
The person conserves his/her rights and can therefore continue to carry out financial transactions. However, these can be withdrawn or reduced if considered excessive, even to the point of being annulled if it can be proved that the person was suffering from a mental problem at the time of the act. The person under legal protection can establish a power of attorney (or mandate) either before or after the judgement.
If it was stipulated that this would be for the duration of the protection, s/he cannot revoke it before it comes to an end. However, the judge can revoke it and can order that the accounts be submitted for inspection. If the person who requested the legal protection becomes aware of the necessity to carry out transactions to protect and conserve the patrimony of the person under guardianship, it is his/her duty to make sure that this is done. This same obligation extends to the director of an establishment where the person is residing or to whoever lodges the person.
Duration of legal protection
According to article 491-6, there are three conditions which may lead to the termination of legal protection:
- the order which led to it being set up lapses
- it is revoked by a tutelary judge
- guardianship or trusteeship has been established (i.e. a curator or tutor has been appointed)
The right to appeal
Any interested party may request revocation of legal protection and has the right to appeal against the decision of the tutelary judge.
Conditions for the appointment of a curator
The appointment of a curator is requested in cases where the person fulfils the conditions of article 490 and is in need of advice or assistance in carrying out daily acts (article 508). It is a very flexible system of guardianship in that the judge can tailor the protective measures to the needs of the individual. The person may carry out some actions alone, but needs the authorisation of the curator for others.
How curatorship is arranged
The same procedure and conditions as for tutorship apply (please see the relevant section).
Who can be a curator
The spouse becomes curator unless s/he is separated or the judge decides against this, in which case the judge may elect another person (article 509-1). There is no family council in the case of curatorship.
The tutelary judge decides whether a person can be excused from the duty of curator, as well as on the exclusion, dismissal or challenging of a curator (article 509-2).
The duties and responsibilities of curators
A person under curatorship cannot, without the assistance of the curator, make any decision which under the system of tutorship would have necessitated the approval of the family council. Neither can s/he accept capital or use it without the assistance of the curator (article 510). If the curator refuses assistance, the person under curatorship can request authorisation from the tutelary judge. If authorisation is not required for particular acts, they can still be subject to rescision or annulled just like for someone who is subject to legal protection (article 510-3). Either at the time of setting up the curatorship or at a later date, the judge can, on the advice of the person's usual doctor, stipulate the acts which the person is allowed to carry out freely or, on the contrary, add acts for which assistance is required (article 511).
The judge can order the curator to collect the revenue of the person under curatorship, take care personally of all expenses to third parties and invest any excess amount in an account approved by the government.
Donations can only be made with the assistance of the curator (article 513).
Measures to protect the ward from misuse of power.
Measures designed to protect the person under curatorship are not explicitly stated but are implied in the law in its provisions and procedures, e.g. the social inquiry into family relations and the judge's discretion in the choice of tutor or curator etc. There is little provision for supervision on a continuous basis or penalties for abuse of power.
However, a curator with responsibility for collecting and investing revenue must keep an account of all transactions and present the annual accounts to the tutelary judge.
Duration of curatorship
The same conditions apply to the duration of curatorship as to the duration of tutorship (please see next section) but in addition, curatorship would be terminated in the event of a tutor being appointed.
Conditions for the appointment of a tutor
A tutor is generally appointed in cases where the person (who fulfils the provisions of article 490) needs to be represented in all civil acts on a permanent basis (article 492). According to the Association Luxembourg Alzheimer , this form of guardianship is most suitable for people who are suffering from a severe deterioration of their cognitive abilities resulting in a need for permanent assistance.
How tutorship is arranged
Tutors are appointed by the tutelary judge at the request of the person for whom the measure is intended, the spouse (unless separated), ascendants, descendants, brothers and sisters or the Office of the Director of Public Prosecutions. Other relatives and friends cannot make an official request but can inform the judge of reasons which they feel would justify the appointment of a tutor. This also applies to the person’s usual doctor and the director of an establishment.
The request must be addressed to the tutelary judge in the place of residence of the person with presumed incapacity (i.e. at the tribunal of Luxembourg or Diekirch). The request must contain details of the person’s close relatives and be accompanied by a medical certificate from a doctor specialised in psychiatry, neuropsychiatry or neurology.
When the judge receives a request for tutorship, as stated previously, s/he may immediately take the necessary steps to arrange for legal protection. Then a social enquiry is set up by the central service of social assistance. A social worker, who is charged with the inquiry, carries out an obligatory visit to the person who is presumed to be in need of protection in order to form an opinion of his/her mental state. A report is then drawn up on the general situation as well as on family relations, the financial situation and the personal fortune. The judge then sees the person to be protected in court or if this is not possible at the person's home or in an institution. This allows him/her to form a personal opinion of the person and in combination with the social enquiry and medical report to make a decision.
This is a closed audience in the presence of the state prosecutor who must have received the relevant documentation one month before the date of the audience. The parties are heard but it is not obligatory for the person with presumed incapacity to be assisted by a lawyer. This procedure does not involve any costs.
Who can be a tutor
The spouse becomes the tutor unless s/he is separated or the judge decides against this, in which case the judge may select another person. No party other than the spouse, descendants or legal entities shall be obliged to retain the tutorship of an adult for more than five years. After this period, the tutor may ask to be replaced (article 496-1).
The person’s usual doctor cannot be tutor but the judge may ask him/her to take part in the family council on a consultancy basis (article 496-2).
The duties and responsibilities of tutors
The law allows for different ways to handle the finances of the person under tutorship depending on the state of the person's illness and the extent of his/her personal fortune. For example, if there is a close relative who is willing to accept the responsibility, the judge can designate him/her as legal administrator under judicial control without appointing a surrogate tutor or family council (article 497). A family council is not usually necessary unless the fortune is particularly large or there are serious problems between family members.
Depending on the type of marriage contract that a married person previously drew up, it might not be necessary to appoint the spouse as tutor as s/he would already have the authority to take care of the person’s interests (article 498).
Another option is to appoint a manager (gérant de la tutelle) instead of a surrogate tutor or family council. This solution is often used if the person has no family or if the family is disinterested or unsuitable to manage his/her fortune. The manager could be someone from the administrative personnel of the establishment in which the person with incapacity is being treated or a special administrator appointed in accordance with conditions fixed by a Grand Duchy ruling (article 499).
The manager (gérant de la tutelle) collects the revenue of the protected person and uses it for the person's upkeep, treatment and maintenance. If there is any surplus, it is paid into an account which must be opened at a deposit institution approved by the Government. If other acts become necessary, the manager must obtain authorisation from the tutelary judge (article 500).
However, the judge may at any time, in accordance with the advice of the person’s usual doctor, determine certain acts that the person with incapacity can do either on his/her own or with assistance (article 501).
If there is a family council, it can authorize donations in the name of the person with incapacity, but only in favour of the descendants of the latter as an advancement (of an inheritance) or in favour of the spouse (article 505).
Measures to protect the ward from misuse of power.
Measures designed to protect the person under guardianship are not explicitly stated but are implied in the law in its provisions and procedures e.g. the social inquiry into family relations, the judge's discretion in the choice of tutor or curator, the limitation of tutorship to five years, etc. There is, however, little provision for supervision on a continuing basis or penalties for abuse of power.
Nevertheless, managers (gérants de tutelle) must submit annual accounts to the tutelary judge (article 500).
Duration of tutorship
Tutorship lasts until the conditions which necessitated it no longer apply (article 507).
The right to appeal
The person who requested tutorship as well as others, even if they were not involved in the proceedings, may appeal against the court decision concerning the establishment of tutorship (article 493).
However, judgements concerning the establishment, modification or lifting of the tutorship can only be opposed by third parties two months after the decision has been officially recorded in the person’s personal file in accordance with the provisions of the New Code of Civil Procedure (article 493-2).
Capacity in specific domains
As a person who is under legal protection continues to exercise his/her rights, s/he retains the right, in principle, to marry, vote and make a will.
Marriage and divorce
A person who is subject to curatorship cannot marry unless s/he has obtained the authorisation of the curator or, failing this, the authorisation of the tutelary judge (article 514). Article 1399 of the Civil Code also states that if marriage is authorised, the person who is subject to curatorship must be assisted in the ceremony. If this condition is not respected, the ceremony can be annulled in the year following the marriage at the request of either the incapacitated person him/herself, those whose consent was required or the curator.
A person who is subject to tutorship must obtain the authorisation of the Family council in order to marry. The Family council must meet in order to discuss this and cannot come to a decision before it has met the proposed husband or wife. In addition, the opinion must be sought of the doctor who is responsible for the care of the person under tutorship (article 506). Article 1399 of the Civil Code also states that if the marriage is authorised, the person who is subject to tutorship must be assisted in the ceremony. If this condition is not respected, the ceremony can be annulled in the year following the marriage at the request of either the incapacitated person him/herself, those whose consent was required or the tutor.
According to article 1123 of the Civil Code, a person has contractual capacity unless s/he has been declared incapable by law. Under the provisions of article 488, for example, limitations to a person’s contractual capacity may be defined.
A person with capacity cannot oppose a contract made by a person with incapacity (article 1125 of the Civil Code).
The Law of 31 July 1924 concerning the modification of the Electoral Law (and subsequent amendments) lays down the conditions and restrictions on the right to vote. According to article 4, adults who are subject to tutorship are not entitled to vote.
In order to make a donation during one’s lifetime or by means of a testament, a person must be of sound mind (“sain d’esprit”) (article 901 of the Civil Code). To challenge the validity of a testament, it must be proven that the person was not of sound mind at the precise time that s/he drew up the testament.
In principle, a person who is subject to curatorship may freely make a will.
A will which is made after tutorship has been established shall be legally null and void (article 504). A will made prior to tutorship remains valid unless it can be proved that the reasons for which the testator made the will have disappeared since tutorship was set up.
To carry out a valid act, according to the Law of 11th August 1982 concerning Reform of the Law on Incapable Adults, the person must be of sound mind. However, it is up to the person concerned to prove that this was not the case at the time the act was committed. This defence must be instigated by the person who committed the act or failing this by the curator or tutor if there is one.
According to article 489-2 of the above-mentioned law,
"Any person causing injury to a third party while afflicted by mental disorder shall nevertheless be obliged to make reparation."
According to article 71 of the Penal Code:
"A person is not criminally responsible if at the time of the act s/he was suffering from a mental disorder which abolished his/her discernment or the control of his/her acts."
However, if such a judgement is passed (i.e. that the person is not criminally responsible for the act) and if the person is still considered a danger to him/herself or others, it is accompanied by an order to place that person in an establishment or service recognised by law as providing the necessary care.
Article 71-1 stipulates that if the person’s discernment or the control of his/her acts was not abolished but simply altered as a result of a mental disorder, s/he could be punished for the acts but the court would take into consideration attenuating circumstances when deciding on the punishment.
- Alzheimer Europe (2010), Guide des aidants, Alzheimer Europe
Last Updated: Wednesday 28 March 2012